Trump EO Would Stop States from Using Water Quality to Block Pipelines

Tom Johnson | April 12, 2019 | Energy & Environment
President looks to prevent states from using Clean Water Act to reject energy projects that could pollute ground water, streams, lakes, and similar resources

Credit: flickr
oil pipeline
President Donald Trump issued an executive order this week to hinder states from blocking unwanted oil and natural-gas pipelines by potentially stripping away their authority to reject projects that impair water quality.

The executive order could limit the ability of states to use the federal Clean Water Act to refuse to certify energy projects that officials believe could endanger their waterways or fail to meet surface-water quality standards.

Both Connecticut and New York have used that tool to stop pipeline projects, and opponents of the controversial PennEast pipeline project in New Jersey believe it is the best option for stopping the $1 billion, 120-mile pipeline that begins in Pennsylvania and ends in Mercer County.

Limiting time for reviews

The executive order directs the federal Environmental Protection Agency to re-examine guidance on how the federal clean water law is interpreted, hoping to limit the scope and time of state reviews of energy projects.

“The president is attempting to advance his dangerous fossil-fuel agenda by trampling on the rights of states to protect their waterways under the Clean Water Act,’’ said Tom Gilbert, campaign director for ReThink Energy NJ and the New Jersey Conservation Foundation.

Jennifer Danis, staff attorney for Columbia Law School’s Environmental Clinic, called the president’s executive order “an unprecedented federal power grab’’ that squashes states’ right to protect natural resources.

“Reducing the amount of time states have to review projects or limiting the number of factors states may consider would infringe upon the legal authority clearly reserved to state governments under the Clean Water Act,’’ she said.

PennEast waiting on permits

The PennEast project, perhaps the most contentious of numerous pipeline expansion projects pending in New Jersey, still requires a host of permits, including a so-called Section 401 permit under the Clean Water Act from the state Department of Environmental Protection. PennEast declined to comment on the president’s actions.

The project in New Jersey has spurred widespread opposition, even though most of the pipeline will be built in Pennsylvania. Still, here in New Jersey the route of the pipeline would cross as many as 38 C-1 streams, the most pristine and supposedly protected waterways in the state.

But the action drew praise from the American Energy Alliance, a trade organization representing energy companies.

“Today’s executive orders are an attempt to make necessary changes to ensure federal statute is properly interpreted and followed, and make certain that politically motivated delays blocking pipeline infrastructure comes to an end,’’ said Tom Pyle, president of AEA.

Fred Jaus, a former attorney with the Federal Energy Regulatory Commission, questioned the impact the executive orders (another one gives the president more authority over cross-border infrastructure) will have on development of energy projects. He argued the Section 401 provision requires those seeking permits to obtain state certification that a project complies with its water-quality standards.

“This state certification has been a critical background in the development of new infrastructure,’’ Jaus said. “The executive order cannot change this requirement for state certification, such a change would require an act of Congress.’’

Jeff Tittel, director of the New Jersey Sierra Club, noted the provision has been the most successful tool states have used to stop pipelines that damage natural resources.

The likely result is the issue will end up in the courts, he said. Many states, including New Jersey, have adopted aggressive plans to rely exclusively on clean energy in the future. Just yesterday, Gov. Phil Murphy touted the state’s plans to have 100 percent clean energy at an event in Trenton.

That goal, however, is complicated by the state’s reliance on natural gas, which provides 40 percent of New Jersey’s electricity and more than 70 percent of the fuel to heat homes and businesses. Further, the price of the fuel has dropped dramatically in recent years, lowering both electric and gas bills for consumers and businesses.